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To promote stable, constructive labor-management relations through the resolution and prevention of labor disputes in a manner that gives full effect to the collective-bargaining rights of employees, unions, and agencies.

The petition for review in this case comes before the Authority pursuant
to section 7105(a)(2)(E) of the Federal Service Labor - Management Relations
Statute (the Statute) and raises the question of the negotiability of five
Union proposals.
1

Union Proposal 1

Employees will not be required to carry out tasks that are not assigned
by a supervisor or management official. [ v11 p672 ]

Question Before the Authority

The question is whether Union Proposal 1 is inconsistent with the rights
of management under section 7106(a) of the Statute, as alleged by the
Agency.

Opinion

Conclusion and Order: Union Proposal 1 is inconsistent with management's
right to assign work under section 7106(a)(2)(B) of the Statute.
2
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations (5 CFR 2424.10 (1982)), IT IS ORDERED that the petition for review
with respect to Union Proposal 1 be, and it hereby is, dismissed.

Reasons: The record in the instant case indicates
3
that the Union intends the disputed proposal to preclude the agency from
designating certain bargaining unit employees, i.e., Deputy U.S. Marshals, as
Deputy-In-Chief and assigning them responsibility for supervision of other unit
employees in connection with certain work projects.
4
In this regard, the proposal is substantively identical to Union Proposal [ v11
p673 ] 1 in American Federation of Government Employees, AFL - CIO, Local 3385
and Federal Home Loan Bank Board, District 7, Chicago, Illinois, 7 FLRA No. 58
(1981), which prevented the agency from requiring unit employees who had been
designated "Examiners-In-Charge" to evaluate the performance of other employees
in the unit. In that case, the Authority held that Union Proposal I directly
interfered with management's right to assign work under section 7106(a)(2)(B)
of the Statute by prohibiting the agency from assigning evaluation duties to
bargaining unit members. Similarly, by preventing the Agency from assigning
duties connected with supervision of certain work projects to unit employees
the proposal herein would directly interfere with management's right to assign
work and, thus, for the reasons more fully set forth in the Federal Home Loan
Bank Board decision, is outside the duty to bargain under section 7106(a)(2)(B)
of the Statute.

Furthermore, the record indicates the proposal is also intended to
preclude, among others, Federal judges, from making work assignments to those
unit employees who are assigned to their courts.
5
In this regard as well, the proposal would directly interfere with management's
right to assign work under section 7106(a)(2)(B) by preventing the Agency from
requiring unit employees serving as marshals, e.g., in Federal courts, to carry
out tasks assigned them by judges. Thus, the proposal is outside the duty to
bargain under section 7106(a)(2)(B). Cf. International Association of
Firefighters, AFL - CIO, Local F-116 and Headquarters, 4392d Aerospace Support
Group (SAC), Vandenberg Air Force Base, California, 9 FLRA No. 83 (1982) (Union
Proposal 1) (wherein the Authority held a proposal preventing management from
assigning certain duties to unit employees violative of right to assign
work).

Union Proposal 2

Bargaining unit overtime work will only be performed by unit employees
when unit employees are ready, willing and able to work.

Union Proposal 3

Overtime work will be distributed fairly and equally. Overtime rosters
will be maintained by the supervisors and may be reviewed by union officials.
The overtime rosters will reflect all overtime worked and refused. Employees
will not be skipped on the overtime roster unless the employee agrees.
Employees that are skipped on the roster will be paid overtime even though they
didn't work. The overtime rosters will be established locally subject to the
approval by the parties at the level of recognition. [ v11 p674 ]

Question Before the Authority

The question is whether Union Proposals 2 and 3 are inconsistent with
the rights of management under section 7106 of the Statute, as alleged by the
Agency.

Opinion

Conclusion and Order: Union Proposals 2 and 3 are inconsistent with
management's right to assign work under section 7106(a)(2)(B) of the Statute.
6
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations (5 CFR 2424.10 (1982)), IT IS ORDERED that the petition for review
with respect to Union Proposals 2 and 3 be, and it hereby is, dismissed.

Reasons: Union Proposal 2 by its language and intent as indicated in the
record would preclude the Agency from assigning work normally performed by unit
employees to supervisors, beyond their normal duty hours, where the work
otherwise would be performed by unit employees on overtime. In this regard, the
proposal is substantively identical to the last sentence of Union Proposal 1 in
American Federation of Government Employees, AFL - CIO, National Joint Council
of Food Inspection Locals and Department of Agriculture, Food Safety and
Quality Service, Washington, D.C., 9 FLRA No. 74 (1982), which provided that
the agency could not assign duties normally performed by employees in the unit
to supervisors when those duties could be performed by unit employees on
overtime. The Authority held that the proposal in that case directly interfered
with management's right to assign work under section 7106(a)(2)(B) of the
Statute by improperly limiting management's discretion to determine which
employees will receive particular work assignments and, thus, was outside the
duty to bargain. Therefore, for the reasons set forth in the Food Safety and
Quality Service decision, Union Proposal 2 in this case is likewise outside the
duty to bargain.

Union Proposal 3 would require the Agency to establish rosters for the
distribution of overtime work and to assign overtime work "fairly and equally"
among employees strictly on the basis of their standing on these rosters.
Moreover, the record indicates that bargaining unit employees do not all
perform the same duties.
7
Thus, the effect of Union Proposal 3 would be to require management to assign
employees to overtime work in circumstances where the work to be performed is
different from that to which the employees normally are assigned.
8
[ v11 p675 ] In this regard, Union Proposal 3 is substantively identical to
Union Proposals 1-4 in American Federation of Government Employees, AFL - CIO,
International Council of U.S. Marshals Service Locals and U.S. Department of
Justice, U.S. Marshals Service, 8 FLRA No. 62 (1982), which required the agency
to make assignments to the air lift program from seniority rosters.
9
In that case, the Authority relied upon its decision in American Federation of
Government Employees, AFL - CIO and Air Force Logistics Command, Wright -
Patterson Air Force Base, Ohio, 2 FLRA 604, 630-32 (1980), enforced as to other
matters sub nom. Department of Defense v. Federal Labor Relations Authority,
659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S.
945, 102 S. Ct. 1443 (1982), to find those proposals outside the duty to
bargain since they removed management's discretion to assign work to employees
under section 7106(a)(2)(B) of the Statute. Thus, for the reasons set forth in
the Wright - Patterson Air Force Base decision, the Authority finds that Union
Proposal 3 is outside the duty to bargain because it directly interferes with
the Agency's right to assign work under section 7106(a)(2)(B) of the Statute.
10

Union Proposal 4

Involuntary reassignments will only be made to promote the efficiency of
the service, and will not be made to discriminate or punish, or for any reason
that would violate law, rule, regulation, or this agreement.

Question Before the Authority

The question is whether Union Proposal 4 is inconsistent with section
7106 of the Statute, as alleged by the Agency.

Opinion

Conclusion and Order: Union Proposal 4 is inconsistent with section 7106
of the Statute. Accordingly, pursuant to section 2424.10 of the Authority's
Rules and Regulations (5 CFR 2424.10 (1982)), IT IS ORDERED that the Agency
shall upon request (or as otherwise agreed to by the parties) bargain
concerning Union Proposal 4.
11
[ v11 p676 ]

Reasons: The Agency contends that Union Proposal 4 is outside the duty
to bargain because the criteria governing management action established there
in directly interfere with management's rights to assign and discipline
employees under section 7106(a)(2)(A) of the Statute. The Union contends
12
however, that Union Proposal 4 merely requires management to exercise its
rights under section 7106(a) of the Statute in accordance with law, regulation,
and the contract. Based on its language and intended meaning, the Authority
interprets the proposal, in agreement with the Union, as essentially requiring
the Agency, in exercising its statutory management rights, to do so in a manner
consistent with law, i.e., based on legitimate management considerations, and
according to the procedural safeguards of the contract.
13

The Authority has consistently held that general provisions requiring
management to exercise its statutory rights under section 7106 in compliance
with law are within the duty to bargain. National Federation of Federal
Employees, Local 1497 and Department of the Air Force, Lowry Air Force Base, 9
FLRA No. 20 (1982) (Union Proposal 2). See also American Federation of
Government Employees, AFL - CIO, National Council of EEOC Locals and Equal
Employment Opportunity Commission, 10 FLRA No. 1 (1982) (Union Proposal 1),
appeal docketed sub nom. Equal [ v11 p677 ] Employment Opportunity Commission
v. Federal Labor Relations Authority, No. 82-2310 (D.C. Cir. Nov. 1, 1982).
Therefore, since the purpose and effect of Union Proposal 4 herein is to
require that management exercise its statutory rights in accordance with
applicable law, regulation, and contractual procedures, it likewise is within
the duty to bargain under the Statute.
14

Union Proposal 5

These supplemental local agreements may cover the personnel policies,
practices, procedures, working conditions, and conditions of employment that
are within the discretionary authority of the U.S. Marshals Director in
districts for which he is (they are) appointed. Matters which may be included
in supplemental agreements are:

2. Rotation of work assignments;

4. Fair and equitable distribution of overtime; [ v11 p678 ]

7. Day-care centers.

Section 5. The parties agree to develop a mutually acceptable system for
rotating work assignments at the local level where necessary.

Question Before the Authority

The question is whether Union Proposal 5 is inconsistent with
management's rights under section 7106 of the Statute, as alleged by the
Agency.

Opinion

Conclusion and Order: Union Proposal 5 is not inconsistent with
management's rights under section 7106 of the Statute. Accordingly, pursuant to
section 2424.10 of the Authority's Rules and Regulations (5 CFR 2424.10
(1982)), IT IS ORDERED that the Agency shall upon request (or as otherwise
agreed to by the parties) bargain concerning Union Proposal 5.
15

Reasons: Union Proposal 5 would require the Agency to negotiate
supplemental agreements covering certain specified subject matters at the level
of the U.S. Marshals' district offices. In this regard, the Authority has
consistently held that, under the Statute, the duty to bargain at the level of
exclusive recognition within an agency extends to proposals which authorize the
negotiation of supplemental agreements at a sub-level. See American Federation
of Government Employees, AFL - CIO and Air Force Logistics Command, Wright -
Patterson Air Force Base, Ohio, 2 FLRA 604, 619 (1980), enforced as to other
matters sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981),
cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945, 102 S. Ct. 1443 (1982). See
also American Federation of Government Employees, AFL - CIO, Local 695 and
Department of the Treasury, U.S. Mint, Denver, Colorado, 3 FLRA 43, 47 (1980);
Department of Health and Human Services, Social Security Administration and
Local 1346, American Federation of Government Employees, AFL - CIO, 6 FLRA No.
33 (1981) at 3 of decision; Interpretation and Guidance, 7 FLRA No. 105 (1982)
at 3 of opinion.

The Agency alleges that the specific subject matters referenced in the
proposal pertain to the exercise of management rights under the Statute and,
therefore, that the proposal is nonnegotiable. However, contrary to the Agency,
it is clear that [ v11 p679 ] various proposals relating to those subject
matters are within the duty to bargain under the Statute;
16
for example, as to rotation of work assignments, see, e.g., American Federation
of Government Employees, AFL - CIO and Air Force Logistics Command, Wright -
Patterson Air Force Base, Ohio, 5 FLRA No. 15 (1981), Laborers International
Union of North America, AFL - CIO, Local 1276 and Veterans Administration,
National Cemetery Office, San Francisco, California, 9 FLRA No. 84 (1982)
(Provision 1); as to distribution of overtime, see, e.g., American Federation
of Government Employees, AFL - CIO, National Joint Council of Food Inspection
Locals and Department of Agriculture, Food Safety and Quality Service,
Washington, D.C., 9 FLRA No. 74 (1982) (Union Proposal 1, exclusive of last
sentence); as to the provision of day care, see, e.g., American Federation of
Government Employees, AFL - CIO and Air Force Logistics Command, Wright -
Patterson Air Force Base, Ohio, 2 FLRA 604-608 (1980), enforced as to other
matters sub nom. Department of Defense v. Federal Labor Relations Authority,
659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S.
945, 102 S. Ct. 1443 (1982), and American Federation of Government Employees,
AFL - CIO, Local 12 and Office of Personnel Management, Washington, D.C., 6
FLRA No. 76 (1981), appeal docketed sub nom. Office of Personnel Management v.
Federal Labor Relations Authority, No. 81-2106 (D.C. Cir. October 15, 1981).
Moreover, the proposal would not require the Agency to bargain in any manner
which would be precluded by the Statute. Thus, it is concluded that Union
Proposal 5 is within the Agency's duty to bargain under the Statute. See
American Federation of Government Employees and General Services
Administration, 11 FLRA No. 54 (1983).

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO,
INTERNATIONAL COUNCIL OF
U.S. MARSHALS SERVICE LOCALS
Union
and
DEPARTMENT OF JUSTICE,
U.S. MARSHALS SERVICE
Agency
Case No. 0-NG-413
11 FLRA No. 113

This matter is before the Authority on a motion by the Department of
Justice for reconsideration of the Authority's decision regarding Union
Proposal 5 in American Federation of Government Employees, AFL - CIO,
International Council of U.S. Marshals Service Locals and Department of
Justice, U.S. Marshals Service, 11 FLRA No. 113 (1983). In its decision, the
Authority held that proposal, which provided for local supplemental agreements
covering specified subject matters, to be within the duty to bargain. In
seeking reconsideration, the Agency merely states its disagreement with the
Authority's decision based upon the same arguments presented in its initial
statement of position.

Section 2429.17 of the Authority's Rules and Regulations permits a party
to move for reconsideration of a decision of the Authority if, inter alia, it
makes and can support a claim of extraordinary circumstances. Here, the
Authority concludes that the Agency has not met this requirement. Rather, the
arguments made in support of the motion simply indicate the Agency's
disagreement with the Authority's holding that the proposal is negotiable. [
v11 p]

Accordingly, IT IS ORDERED that the motion for reconsideration of the
Authority's decision be, and it hereby is, dismissed.

Footnote 1 The agency filed a motion to dismiss
the Union's appeal under section 2424.3 and 4 of the Authority's Rules and
Regulations (5 CFR 2424.3 and 4 (1982)) arguing, essentially, that the appeal
failed to set forth in full the contents of the proposals as required by the
regulations and, thus, did not give the Agency adequate notice as to the
matters under appeal. However, the full text of the proposals was attached to
the Union's petition for review, and such attachment constituted compliance
with the requirements of the Authority's regulations. Therefore, the Agency's
motion to dismiss the Union's appeal is denied.

Footnote 2 Section 7106(a) of the Statute
provides, in relevant part, as follows: 7106. Management rights (a) Subject to
subsection (b) of this section, nothing in this chapter shall affect the
authority of any management official of any agency-- (2) in accordance with
applicable laws-- (B) to assign work, to make determinations with respect to
contracting out, and to determine the personnel by which agency operations
shall be conducted(.)

Footnote 3 See Union Response to Agency
Statement of Position at 13-16.

Footnote 4 The Union claims that the Agency's
practice of designating unit employees as "Deputy-In-Chief" constitutes an
illegal assignment of higher graded duties to nonsupervisory employees and
asserts that the practice has been ruled illegal by the Comptroller General.
However, the Union cites no decision of the Comptroller General specifically
disapproving the Agency's use of Deputies-in-Chief or otherwise supporting its
claim that the practice is illegal.

Footnote 5 See Agency Statement of Position at
5-6; Union Response to Agency Statement of Position at 16-17.

Footnote 8 Thus, Union Proposal 3 herein is
distinguishable from the portions of Union Proposal 1 which the Authority found
to be negotiable in Food Safety and Quality Service, supra. In that case, the
negotiable portions of the proposal specifically provided for overtime
assignments to be given to the employees whom management had already assigned
the duties involved on a regular basis.

Footnote 9 Contrary to the Union's contention,
it is not a material distinction under section 7106(a)(2)(B) of the Statute
that the proposal in the instant case concerns work assignments on an overtime
basis.

Footnote 10 In view of the Authority's decision
herein, it is unnecessary to reach the issue of the negotiability of the
requirement that employees passed over receive payment for overtime which they
did not work.

Footnote 11 In deciding that Union Proposal 4
is within the duty to bargain under the Statute, the Authority makes no
judgment as to its merits.

Footnote 12 See Union Response to Agency
Statement of Position at 23-24.

Footnote 13 As to the requirement in Union
Proposal 4 that involuntary reassignments not be made to discriminate or
punish, see In re Frazier, et al., 1 MSPB 159 (1979), wherein the Merit Systems
Protection Board (MSPB) held that an involuntary reassignment based on, and in
retaliation against, an employee's EEO activities constituted a prohibited
personnel practice. In this case, MSPB distinguished between reassignments
based on sound management considerations and those which are a pretext for
retaliatory reasons and, as such, contrary to law. In this regard, see also
Motto v. General Services Administration of the United States, 335 F. Supp. 694
(E.D. La. 1971), affirmed, 502 F.2d 1165 (5th Cir. 1974), cert. denied, 420
U.S. 927 (1975). As to the requirement that involuntary reassignments "promote
the efficiency of the service," see Jack E. Ketterer v. U.S. Department of
Agriculture, Federal Crop Insurance Corporation, 2 MSPB 459 (1980), in which
MSPB, reviewing an agency action removing an employee for refusal to accept
reassignment, held that the agency must prove by a preponderance of the
evidence that the removal will promote the efficiency of the service.
Specifically, MSPB held that such proof must include "a demonstration that the
agency's decision to reassign the employee was a bona fide determination based
on legitimate management considerations in the interest of the service." 2 MSPB
459, 461 (1980). See also American Federation of Government Employees, AFL-CIO,
International Council of U.S. Marshals Service Locals and U.S. Department of
Justice, U.S. Marshals Service, 8 FLRA No. 62 (1982) (Union Proposal 5).

Footnote 14 Cf. Internal Revenue Service,
Austin District and National Treasury Employees Union, NTEU Chapter 52, 9 FLRA
No. 77 (1982), wherein the Authority considered an arbitrator's award rendered
under an agreement provision analogous to Union Proposal 4 herein. In that
case, the Authority upheld an award of backpay to an employee who resigned
rather than accept reassignment. The arbitrator determined that the
reassignment was invalid, concluding that the only purpose of that action was
to discipline the employee and, thus, that it was contrary to a contractual
provision precluding reassignments in lieu of discipline. The Authority
determined, contrary to the agency's exception that the award was inconsistent
with management's right under section 7106(a)(2) of the Statute, that the
contractual provision in question was solely concerned with insuring that any
reassignment intended as discipline be subject to applicable legal, regulatory,
and contractual requirements and procedures. That is, the Authority concluded
that the provision was intended to assure that management's exercise of its
authority under section 7106(a)(2) will be in accordance with law. See also
Portsmouth Naval Shipyard and Federal Employees Metal Trades Council, AFL-CIO,
5 FLRA No. 28 (1981).

Footnote 15 In deciding that the proposal is
within the duty to bargain under the Statute, the Authority makes no judgment
as to its merits.

Footnote 16 In reaching this conclusion, the
Authority makes no decision as to any specific proposals which might be
advanced by the Union in any subsequent negotiations under this proposal should
it be agreed to by the parties. In any event, the Agency's contentions
regarding proposals which might possibly be proffered by the Union in
subsequent negotiations are speculative and, thus, not dispositive.